Court Refuses to Fault Police on Handling of Protection Order

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WASHINGTON, June 27 - The Supreme Court ruled today, in a case closely watched by local government officials and by groups fighting domestic violence, that a Colorado woman could not sue the police for failing to protect her and her children from her estranged husband.

The 7-to-2 decision threw out a lawsuit filed by Jessica Gonzales, whose husband, Simon Gonzales, kidnapped their three young daughters on June 22, 1999, shot them to death and was killed himself in a shootout with the police in Castle Rock, Colo.

The majority said Ms. Gonzales did not have a "property interest" in police protection, as her lawyers had contended, because the police have wide discretion in what to do and "a benefit is not a protected entitlement if officials have discretion to grant or to deny it."

Ms. Gonzales had obtained a protection order limiting her husband's contact with the children. On June 22, he abducted them as they were playing in front of the family home, prompting the mother to call the Castle Rock police and ask that the children be taken back.

Officers went to Ms. Gonzales's home and read the protection order, but told Ms. Gonzales to call them again later if the children were still missing, according to court papers. Nearly 12 hours after taking the children, their father arrived at the police station, opened fire and was shot dead. The bodies of the children were found in his pickup truck.

The United States Court of Appeals for the 10th Circuit, based in Denver, had sided with Ms. Gonzales, reasoning that a provision of Colorado law telling law enforcement officials that they "shall use every reasonable means to enforce" orders like the one obtained by Ms. Gonzales did indeed create a "property interest" in police protection, which cannot be denied without "due process."

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But Justice Antonin Scalia, writing for the court, rejected that reasoning. "Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion," he wrote. Nor would such an entitlement "resemble any traditional conception of property," he said.

The majority said that the people of Colorado, through their lawmakers, could create a system to hold police departments financially accountable "for crimes that better policing might have prevented," if they choose to do so.

The Gonzales case has become a rallying point for individuals and groups interested in curbing domestic violence, and protecting its victims. The case, Town of Castle Rock v. Gonzales, No. 04-278, has also been followed anxiously by local government officials, who feared that a different outcome could make governments vulnerable to many more lawsuits.

The dissenters today were Justices John Paul Stevens and Ruth Bader Ginsburg. They said the majority was wrong to overrule the 10th Circuit, since the Supreme Court generally defers to the circuits' interpretations of laws in states under their purview. Or, instead of overturning the 10th Circuit outright, the majority could have asked the Colorado Supreme Court to review the law in question, the dissenters said.

Moreover, the dissenters said in an opinion by Justice Stevens, if Ms. Gonzales had contracted with a private security company to protect her and her children, "it would be apparent that she possessed a property interest in such a contract."

"Here, Colorado undertook a comparable obligation," the dissenters said, and Ms. Gonzales "with restraining order in hand, justifiably relied on that undertaking."